09.12.2024 | News, SAVALnews
Age discrimination has been a largely discussed topic this year. Age discrimination can be encountered by young people and older people alike, but has been more widely reported, in particular, by people over 55 years of age. Discrimination encountered by older people in recruitment situations is especially problematic. In this article, I will examine the matter from a legal perspective as it relates to private sector employment relationships.
The Non-Discrimination Act prohibits age-based discrimination in working life, and discrimination can even be punishable in accordance with the Criminal Code. The Non-Discrimination Act applies to both private and public employers, as well as to internships and companies employing temporary agency workers.
The law expressly prohibits discriminatory job advertisements. There are only a few exceptional circumstances in which an applicant can be required to be a certain age, for example, when the individual is being hired for a specific role as an actor or professional and advertising model. Age discrimination may also be indirect when the job advertisement appears to be seeking youthful applicants or the youthfulness of the team is emphasised. Demanding any characteristics that are not necessary for the job and that would effectively discriminate against older age groups may also be prohibited.
An employer must also not require that applicants be a certain age based on their own assumptions about what age signifies in terms of abilities. Employers may not, for example, only recruit persons under a certain age for physically heavy work based on their assumption that the condition of older jobseekers would inherently be weaker.
In addition to the text in the actual job advertisement, the employer’s public statements about the required age for an employee may constitute discrimination.
Suspected cases of discrimination generally arise in response to the selection of job applicants to be interviewed. If a more qualified older applicant is passed over and a clearly younger, less qualified person is selected for an interview, this may cause a presumption of discrimination. If a possible dispute situation arises in this case, the employer must be able to demonstrate that their choice was based on acceptable grounds.
Choosing not to interview someone cannot, even indirectly, be based on age. If a person is judged in advance to be overqualified and unmotivated, this may be a case of age discrimination. In order to prevent discrimination, an employer should investigate the applicants’ motivation through an interview.
On the other hand, the employer has neither the obligation nor often the right to select who to interview based on anything other than the factors stated by the applicants themselves. Thus, the applicant solely bears the responsibility for ensuring that their application contains all pertinent information. If the applicant does not sufficiently detail their work experience in the application, it may be acceptable to pass over the applicant, even if they are actually more experienced than, for example, a younger person who was selected.
Furthermore, employers can defend themselves on the grounds that they were unaware of the alleged grounds for discrimination. Age can, of course, often be determined on some level from the application documents, but this is not usually mentioned separately in job applications and CVs nowadays. In particular, if the age difference between the bypassed applicant and the selected applicant is not very significant and it cannot be clearly determined on the basis of the application documents, it would be challenging to prove that discrimination has occurred.
The Non-Discrimination Act does not require employers to select the most qualified applicant in the same way as the Gender Equality Act generally does in order to ensure equality between genders. For example, the higher education of a bypassed applicant is not, on its own, proof of discrimination, especially if the selected applicant is also formally qualified. However, the higher qualifications of an applicant who has been passed over may still cause a presumption of discrimination. Employers can avoid such situations by, for example, demonstrating that the selected applicant is a better fit for the job in question. This is often difficult if the bypassed applicant has not even been invited to interview.
The employer has the right to decide on the selection criteria and how job applications will be sorted and applicants chosen for interviews. However, if the selection criteria are vague or different from what is stated in the job advertisement, the employer will have an increased burden of proof to justify their selection. As a rule of thumb, it could be said that a poor recruitment process or inappropriate selection criteria are not, on their own, considered unlawful activities or proof of discrimination, but they do complicate the employer’s position if a possible discrimination dispute should arise.
In interview situations, age discrimination can be seen, for example, as unjustified questions about coping, health status or the applicant’s motivation.
A presumption of discrimination may arise if a more qualified older applicant is bypassed in favour of a younger applicant. In this case, the legality of the selection will be assessed through the process described above. If necessary, employers must be able to describe their processes and justify their solutions in an objectively acceptable manner, as follows:
The less the process and selection contain these elements, the more likely it is that discrimination may be involved. In addition, if only persons that are clearly younger than a passed-over applicant have been invited to interview, it may be difficult for the employer to show that there is no link between age and their interview selection.
As is the case with disputes in general, discrimination can be resolved through discussions with the employer, negotiations and, ultimately, by the courts. ASIA’s lawyers can provide help to members to resolve such matters. The Non-Discrimination Ombudsman can also provide assistance (see more about this in the Finnish article on the Non-Discrimination Ombudsman’s supervision in working life, found in our member magazine 3/2023. The article can also be found in Finnish on our website under the Uutishuone tab, 28 August 2023).
If discrimination is found to have occurred, however, it does not negate the original selection for the job, and the chosen employee can continue in their position. The discriminated applicant may be eligible, however, for compensation in accordance with the Non-Discrimination Act. The amount is not laid down by law, and there is little relevant praxis on discrimination in recruitment. The most common corresponding compensations have totalled some thousands of euro. Depending on the severity of the violation, the amount may be significantly higher. A claim for compensation must be filed within one year of the applicant being informed of the selection decision. Additionally, the passed-over applicant has the possibility to receive reparation for both material and non-material damage. Possible reparations are taken into account in the determination of the compensation.
Furthermore, the employer or the employer’s representative may be guilty of work discrimination as described in the Criminal Code and may receive a fine or imprisonment for a maximum of six months. Work discrimination is, for example, when an employer, in the course of announcing a job opening, hiring an employee or during an employment relationship, places the applicant or employee in a disadvantaged position on the basis of their age without any weighty, acceptable reason. Work discrimination can be reported directly to the police. Sirpa Leppäluoto Labour Market Director at ASIA
The article is published on ASIA membership magazine 4/2024.